Salazar v. Albuquerque Bernalillo Cnty. Water Util. Auth.

ALEX SALAZAR, Plaintiff, v. ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY, Defendant.

No. CIV 16-00120 RB/KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

January 17, 2017

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment, filed on October 13, 2016. (Doc. 30.) Jurisdiction arises under 28 U.S.C. §§ 1331 and 1367. Having considered the submissions of counsel and relevant law, the Court will GRANT Defendant's motion and DISMISS Plaintiff's Complaint.

I. Brief Factual/Procedural Background

Plaintiff, Mr. Alex Salazar, was an employee of Defendant Albuquerque Bernalillo County Water Utility Authority (the Water Authority). Plaintiff had been disciplined numerous times for a variety of incidents during his employment with the Water Authority. On July 3, 2014, Plaintiff and Defendant entered into a written contract (the Last Chance Agreement), which laid out the terms under which Plaintiff could continue his employment with Defendant. The Last Chance Agreement specified that if Plaintiff failed to comply with its terms, his employment would be ended as a "voluntary resignation." Defendant learned that Plaintiff had failed to comply with the terms of the Last Chance Agreement and ended Plaintiff's employment in October 2014, as a "disciplinary termination." Plaintiff contends that Defendant's behavior in both disciplining and terminating him was discriminatory on the basis of his national origin and his disabilities in violation of Title VII of the Civil Rights Act of 1964, the New Mexico Human Rights Act, and the Americans with Disabilities Act. Plaintiff also contends that his termination was a breach of the written contract.

Plaintiff filed his Complaint in the Second Judicial District Court, County of Bernalillo, State of New Mexico, on July 27, 2015, and Defendant removed the case to this Court on February 19, 2016. (See Doc. 1 (Compl.).) Discovery ended in September 2016, and Defendant's motion for summary judgment is now fully briefed and ready for decision. (Docs. 13, 30, 31, 33.)

II. Legal Standards

A. Summary Judgment Standard of Review

Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is "material" if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is "genuine" if a reasonable trier of fact could return a verdict for either party. Id. The moving party bears the initial responsibility of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Once the moving party meets this burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quotation marks omitted). The party opposing a motion for summaryjudgment "must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324). Rule 56(c) provides that "[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . ." Fed. R. Civ. P. 56(c)(1)(A). The respondent may not simply "rest on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 259; see also Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980) ("However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.") (quotation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008) (citing Fed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). "In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (citations omitted).

B. Relevant Local Rules

Pursuant to Local Rule 56, the party moving for summary judgment "must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists." D.N.M. LR-Civ. 56(b). The movant must number the facts "and must refer with particularity tothose portions of the record upon which the movant relies." Id. In return, the non-moving party must also provide "a concise statement of the material facts . . . as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed." Id. "All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted." Id. (emphasis added). "The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion." Id.

Plaintiff's attorney, Mr. Santiago Juarez, fails to follow Local Rule 56 in the Response. (See Doc. 31.) Mr. Juarez's responses to Defendants' facts are comprised more of conclusory, repetitive, argumentative statements than of statements of facts or citations to the record.

1. Plaintiff Fails to Specifically Controvert Facts

Mr. Juarez disputes or "partially disputes" 36 of Defendant's 61 Material Facts. Because it is counsel's job to competently advocate¹ for his client and not the Court's, where Mr. Juarez fails to specifically controvert Defendant's facts, the Court deems those facts undisputed. The Court reviews Mr. Juarez's responses to Defendant's factual recitation below.

a. Repetitive Responses

In 22 of the 36 responses to the disputed facts, Mr. Juarez substantially repeats one of four statements:

(1) Mr. Juarez's first repeated, conclusory statement is about the disciplinary write-ups. "Based on the Exhibit identified herein, Plaintiff states that there are entries that he was notaware of. All the Write-ups, except three, were invalid according provisions [sic] of the grievance process in accordance to the Union Contract. They were invalid as they did not adhere to the timeline requirements of the grievance process." (Id. ¶¶ 3-5, 8-13 (citing Doc. 31-1).)

The document Mr. Juarez generally cites to is the Collective Bargaining Agreement (CBA) between the Water Authority and AFSCME Local 624. (Doc. 31-1.) He does not, however, identify which write-ups he asserts were invalid or explain how Defendant violated the CBA. Further, he does not establish whether Plaintiff properly disputed any of his alleged grievances within the strictures of the CBA or whether it is proper to raise the issues now in this forum. He does not attach a complete copy of the CBA to his Response, but the Court takes judicial notice of the fact that the CBA is a public record and the full document is available online. See CBA at 26, Article 36(I) (Grievance Procedure), available as a PDF at https://abcwua.legistar.com/View.ashx?M=F&ID=2627285&GUID=0D912F65-522F-404A-8DFC-2775DEBFD02C ("Failure to submit a grievance within ten (10) days following the discovery of the act or the condition which gave rise to the grievance, will constitute forfeiture of the right to file.") (last accessed Dec. 31, 2016). Plaintiff has not, therefore, specifically controverted Material Facts Nos. 3-5 and 8-13, and the Court deems them undisputed. D.N.M. LR-Civ. 56.1(b).

(2) "Due to the selective interpretation and enforcement of the Rules and Regulations by the Water Authority the Plaintiff was wrongfully terminated." (Id. ¶¶ 6, 55-58, 60, 61; see also ¶¶ 8, 9, 12.) This response is pure argument and does not specifically controvert the facts asserted in these paragraphs. Consequently, the Court deems Defendant's Material Facts Nos. 6, 8-9, 12, 55-58, 60, and 61 undisputed.

(3) "However the Last Chance Agreement was excessively punitive and contrived with intent to terminate Mr. Salazar. The Last Chance Agreement is invalid as it was signed under duress and under threat of immediate termination." (Id. ¶¶ 9-13, 21-23.) Again, Mr. Juarez presents argument without referring to the record. He fails to specifically controvert the facts asserted, and the Court deems Defendants Material Facts Nos. 9-13 and 21-23 to be undisputed.

(4) Plaintiff "was targeted because he had become a liability due to his disabilities." (See id. ¶¶ 29, 35, 39, 40.) This argument does not specifically controvert the facts asserted, and the Court finds Defendant's Material Facts Nos. 29, 35, 39, and 40 are undisputed.

b. Plaintiff's Exhibits

Even where Mr. Juarez attempts to introduce evidence (see Docs. 31-1-31-6), he does not do so...